MANY times a condition occurs an
employer decided to punish the labour. There is no specific law enacted by
legislature, which describes procedure to punish the labour. Many aggrieved labour
person had gone to courts against their punishment by employer the various
court decision in this regard has become the backbone of such procedure.
WHO CAN PUNISH: -
It is very important to know that
only employer or any person authorise by him can order punishment to labour
There are six main steps of
this procedure
1. Wrong done [misconduct]
by labour.
5. Show cause.
6. Punishment.
WRONG DONE [MISCONDUCT] BY LABOUR:
No person is entitled to do wrong
during his employment. He is not authorised to do some wrongs even when he is
not on duty or in his private life. In legal term wrongdoing is generally
called misconduct. There is a big list of misconducts, some of them are; -
1.
Absence from duty, overstay of sanctioned
leave.
2.
Fraud or dishonest activity.
3. Negfligent.
4.
Inefficient
5.
Disobedience of superior.
6.
Late coming on duty.
7.
Drinking/Gambling at work place.
8.
Damage to Company property.
9.
Seeping during duty hours.
10. Threatening/Assault / Insult of superiors or
other workers.
11. Stealing or attempting to steal Company
Property.
12.
Conviction by criminal Court. Which
involves crimes of Moral Turpitude. .
13.
Misrepresentation for getting employment.
14.
Eve teasing, molestation etc; of female
workers.
15.
Meeting etc., of Trade Union in Company
Premises.
16.
Shouting slow offensive slogans, in
Company Premises.
This list is very extensive and
most of the things, which our common sense accepts as misconduct, are part of
it.
After misconduct comes into the knowledge
of Management; it normally conducts a preliminary enquiry. It is for examining
whether any prima facie case is found for alleged misconduct. If any material
found which sustains prima facie alleged misconduct, then a detailed enquiry is
made otherwise the case is closed.
If after preliminary enquiry, a
prima facie case was found for alleged misconduct a charge sheet is served to
employee [Labour].
The charge sheet main purpose is to
give knowledge of alleged misconduct to employee so, it can defend itself.
Charge sheet should be in commonly
understood language and should contain alleged misconduct with particulars.
It should also specify reasonable
time period for replying the charge sheet. A clear-cut reference of
consequences in case of timely reply is not given, should also be made.
Employer must issue charge sheet
himself or by any other person authorised by him. It can be served personally to employee or by registered A.D. Post.
If both system fail it should be published in regional News Papers.
If on reply of charge sheet
employer or authorised persons satisfied that employee did no misconduct they
can close the case. But in case of no reply or unsatisfactory reply it will be
necessary for Employer to hold further detailed enquiry. This enquiry is
generally called Domestic enquiry.
Domestic enquiry is conducted to
see in detail whether alleged charges are sustainable. Firm which had their
standing order /service rules had procedure of such enquiry in their standing
order/service rules. Otherwise principles of Natural justice should be observed.
At first step an enquiry
officer is appointed.
The enquiry officer should not have any personal interest or witness of the
incident.
The enquiry officer should give
notice of enquiry to employee specifying date time and place of enquiry with his
name. The notice of enquiry can be served to employee in the same manner, as
charge sheet .It should give sufficient advance time to employee in a language
easily understandable by employee.
If notice of enquiry is properly
served to employee and employee does not present it before Enquiry Officer the
enquiry can be held Ex- Party.
If employee present
itself before enquiry Officer at the time date and place of enquiry. All
allegations on him are explained to him.
First the employer or his representative
produce evidence in support of their allegation before the enquiry officer.
After that employee produces evidence in his defence. Both parties can
cross-examine the witness / evidence of each other. After evidence both parties
give arguments in their favour
Enquiry officer
records enquiry proceedings. The copy of this record is given to employee.
Employee should also be made available any material, document, etc; on which
enquiry is relied on.
In the end Enquiry Officer made an
enquiry report, the report should contain brief introduction of case, charges
against the employee, evidences produced before him, and his findings whether
charges are sustainable or not. This finding should be based on evidence and
reasons. Finding can found charges
sustainable or not sustainable. The
enquiry report is submitted to employer or his authorised representative
SHOW CAUSE: -
After considering the enquiry
report if it is found necessary to award punishment the employee should be
served with show cause notice. The show cause notice contains proposed
punishment and copy of enquiry report. It asks employee to show cause why the
proposed punishment should not be awarded to him. The show cause is issued to
give opportunity to employee for presenting his side. It also contains
reasonable time period for replying.
After considering the reply of show
cause by Employer or his authorised representative if they found employee
responsible for misconduct they can award punishment including dismissal of
service. While deciding the quantum of punishment the gravity of misconduct
must be seen and punishment should be according to it.
TWO MAJOR EXCEPTIONS: -
There are two major exceptions in
law when an employer need not hold any enquiry for awarding punishment to
employee.
1. If he is convicted by criminal court involving
crime related to moral turpitude
2. If a probationary employee services are to be
terminated during probationary period.
DRAFT
OF APPOINTMENT OF ENQUIRY OFFICER
DRAFT
OF ENQUIRY PROCEEDING RECORDING
By Hand, Regd. A.d., U.P.C.
To
Dated:
Shri . ..
S/o .
Designation
R/o
Sh. [Here write the Designation]. Has made a written complaint against you \your following wrong acts are come under my notice. The contents of the same are as under: -
[Here write the complaint or wrong acts]
Youre above acts come under misconduct and against the terms of the appointment.
That by youre above uncalled acts you are creating a bad atmosphere at the working place, which is harming our organisation and also the working of other workers.
That after going through all the allegations and charges against you carefully, you are called upon to submit your written explanations within Seven days from the date of the receipt of this letter as to why disciplinary action should not be taken against you.
Please note that if you fail to give your explanation within stipulated time, the Management shall presume that the charges of this letter are accepted by you and you have not defense to plead and we shall take appropriate action as per law.
Since the charged leveled against you are of serious nature, you are hereby suspended pending further enquiry and final order in the matter. You will be entitled to receive a substance allowance of Rs as per rules per month during the period of suspension. You are directed to report yourself daily at .time at the Factory Gate and punch your Card available at a fix place and also make yourself present for receiving communications and directions intended for you.
Kindly acknowledge the receipt.
(AUTHORISED SIGNATORY)
Note: - The language of the Charge Sheet shall be easily understood by the charge-sheeted employee.
SUSPENSION
LETTER
By Hand, Regd. A.d., U.P.C.
To
Dated:
Shri
S/o ..
Designation ..
Address .
SUBJECT: SUSPENSION
I had already served you a charge sheet dated .. And, the charges of misconduct have been leveled against you as per the rules of the organisation.
That by above alleged misconduct you are creating a bad atmosphere at the working place, which is harming our organisation and also the working of other workers.
For conductance of proper enquiry against you and in order to maintain discipline in the organisation, you are hereby suspended from your services w.e.f
You will be entitled to receive a substance allowance of Rs per month during the period of suspension as per rules. You are directed to report yourself daily at .time at the Factory Gate and record your attendance Card and also make yourself present for receiving communications and directions intended for you.
(AUTHORISED
SIGNATORY)
OF ENQUIRY OFFICER
To
.
.
.
Dear Sir,
This is to inform you that a charge sheet dated . Was served on Shri ..(give name and address), the reply to which is submitted on ..Since the explanations submitted were not satisfactory by the management, we wanted to hold an enquiry into the charges mentioned in the aforesaid charge sheet.
We have the pleasure to appoint you as the enquiry officer to conduct this enquiry into the alleged charges against .You are requested to hold the enquiry during the duty hours on any day as convenient to you preferably in three months and send us your findings to us
Kindly inform Sh regarding date, time and place of enquiry and forward us a copy of the same. Enquiry should be held according to principles of natural justice and our standing orders.
Copies of the charge sheet and explanations of the employee are enclosed
Kindly also send your consent to be enquiry officer for this enquiry.
.
Thanking you,
Yours Sincerely,
For .
(AUTHORISED SIGNATORY)
Dated:________________
PROCEEDING
RECORDING
Enquiry Proceedings
Against Shri ..(name, fathers name and designation),
Charge Sheet No dated
Place of enquiry ..time date ..
Present: -
1. Workman charged Shri
3. Employers representative Shri
The contents of the aforesaid charge sheet were read over and explained to the workman in the language understand by him. He does not admit the charges; As such the enquiry is to be proceeded against him.
The list of witnesses and the list of documents relied upon and other documents are submitted by the employers representative, who they wanted to be used against the workman, charged. A copy of these documents has also been supplied to the workman.
The employers representative is asked to produce his Evidence
He produced his first witness.
Statement of Shri .( name, fathers name and designation of employers first witness):
(The statement may be in narrative form or preferably, in question answer form)
|
.. |
.. Signatures
|
.. |
.. |
|
(Witness) |
(Workman or his representative) |
(Employers representative) |
(Enquiry Officer) |
Cross-examination of first witness by workman.
|
.. |
.. Signatures
|
.. |
.. |
|
(Witness) |
(Workman or his representative) |
(Employers representative) |
(Enquiry Officer) |
OR
The workman does not want to cross-examine the witness.
(The examination and cross-examination of the other witnesses of the employer and the employee shall be recorded in the same manner. )
The enquiry should be in language understood by workman
The Workman, Employers representative and Enquiry Officer should sign all the pages of enquiry proceedings. The copy of same to be given to Workman and Employers representative and also to be retained by Enquiry Officer
By Hand, Regd. A.d., U.P.C.
To
Dated:
Shri ..
S/o
Designation ..
Address
You have been served charge sheet dated .You had denied the charges & subsequently an enquiry was held. The enquiry officer in its finding has found charges proved against you
You are hereby called to show cause why an action according to rules & regulations of company be taken against you on the basis of enquiry officers finding, which we also find true.
You are given 7 days after the receipt of this show cause for reply.
(AUTHORISED SIGNATORY)
OF DISMISSAL
By Hand, Regd. A.d., U.P.C.
To
Dated:
Shri
S/o ..
Designation ..
Address .
With reference to the Charge Sheet No date issued to you on .. The enquiry was held in your presence and after affording you fully opportunity to defend yourself; The Enquiry Officer found charges proved against you. The Enquiry report has already sent to you along with the show-cause notice served on you on .and we have received your reply dated
After duly consideration of Enquiry report we found the Enquiry Report satisfactory and the charges leveled against you proved against you.
The punishment for this misconduct is dismissal/discharge under the Standing Orders and the Rules of the Factory/Company.
In view of the, the findings of the enquiry officer, Standing Orders and the Rules of the Factory/Company and serious nature of the misconduct committed by you. we have decided to dismiss you from services with immediate effect/with effect from ..
For
(AUTHORISED SIGNATORY)
Dated:________________